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Democracy, the Rule of Law and Judicial Review

Published online by Cambridge University Press:  24 January 2025

David Feldman
David Feldman*
Affiliation:
University of Bristol, England
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Extract

Justifying judicial review of legislatures and executives in western democracies has become a controversial business. Those aspects of rule of law theory which appear to justify judicial review are attacked as undemocratic, in that they tend to replace the will of the people with the will of the judiciary. Where review is based on a set of constitutionally entrenched rights, those rights themselves are regarded as undemocratic; even supporters of rights-based judicial review have tended to concede that the rights, however desirable in some ways, are restrictions on democratic processes, rather than essential parts of democratic constitutional institutions. This seems unnecessarily defeatist. This article seeks to defend judicial review of executive action and of parliamentary legislation, on the basis of a conception of democracy which embodies certain rights rather than being in a state of tension with them.

The argument will take the following shape. A sketch of some relevant democratic considerations in Section 1 will conclude with a description of the model of democracy which will form the basis for the remainder of the argument Section 2 will argue that the function of law in providing powers for governments to use entails legal enforcement of the limits of those powers.

Type
Research Article
Information
Federal Law Review , Volume 19 , Issue 1 , March 1990 , pp. 1 - 30
Copyright
Copyright © 1990 The Australian National University

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Footnotes

This paper is largely a product of my stay as a Visiting Fellow in the Faculty of Law, Australian National University in 1989. I am indebted to Mr Peter Bailey, Mr Peter Bayne, Professor Tony Bradley, Mr Peter Drahos, Professor Don Greig, Dr Hugh Rawlings, Ms Christine Willmore and Professor Leslie Zines for their comments on earlier drafts of this article, and to participants in seminars in the University of Bristol, the Australian National University, the University of Canterbury, New Zealand and the University of New South Wales at which I presented some of the ideas developed here.

References

1 A-G (Cth) Ex rel McKinlay v Commonwealth (1975) 135 CLR 1; Murphy J dissenting.

2 Ibid 57.

3 Cf US Constitution, 26th Amendment; Canadian Charter of Rights and Freedoms (Part I of the Constitution Act 1982 (Canada), forming Schedule B of the Canada Act 1982 (UK)), ss 1 and 3; HF Rawlings, Law and the Electoral Process (1988), Ch l; Feldman, D, “Rights, Capacity and Social Responsibility” (1987) 16 Anglo-American L Rev 97, 100CrossRefGoogle Scholar-104.

4 However, the right to panicipate equally in politics is protected under the European Convention only to the extent of Art 3 of the First Protocol, by which the High Contracting Panies undertake to hold elections by secret ballot at reasonable intervals; contrast the fuller protection in the UN Universal Declaration of Human Rights, Art 21.

5 Eg Art 8(2) (respect for privacy etc), Art 9(2) (freedom of thought etc), and Art 10(2) (freedom of expression). Cf Art 6(1) (power to exclude press and public from trials where justified by the interests of national security in a democratic society).

6 See Sieghart, P, The lnternational Law of Human Rights (1983) 91-94Google Scholar and the authorities cited therein; Malone v United Kingdom (1983) 5 EHRR 385

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8 Some unexpected people have adopted this view, including Lenin (see Graham, K, The Battle of Democracy (1986)Google Scholar Ch 10) and Macpherson, CB, The life and Times of Liberal Democracy (1977) 95-96Google Scholar.

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10 J L Sharpe (ed), Decentralist Trends in Western Democracies (1979); Rowat, D, “Bureaucracy and Policy-Making in Developed Democracies: the Decline of Bureaucratic Influence” (1985) 51 Int Rev Admin Science 189, 190-191CrossRefGoogle Scholar. On the micro level, there may now be signs of a change in the UK, with greater regard for communal participatory control over local institutions such as schools under the Education Reform Act 1989 and housing associations under the Housing Act 1988.

11 HF Rawlings, supra n 3.

12 Baker v Carr (1962) 369 US 186;Gray v Sanders (1963) 372 US 368;Wesberry v Sanders (1964) 376 US 1. These cases reversed the use of the “political question” doctrine to deny relief:Colegrove v Green (1946) 328 US 549. See Tribe, L, American Constitutional Law (1978) 71-79CrossRefGoogle Scholar, 737-761.

13 Attorney-General (Cth) Ex Rel McKinlay v Commonwealth (1975) 135 CLR 1.

14 Ibid 36 per McTieman and Jacobs JJ, 57 per Stephen J; cf 71 per Murphy J.

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16 Viscount Hailsham of St Marylebone, Elective Dictatorship (1976). At the time, Hailsham, a leading Conservative lawyer-politician, was advocating constitutional controls over a Labour government; his attitude changed when the Conservatives returned to power in 1979 and he became Lord Chancellor.

17 Task Force on Co-ordination in Welfare and Health, Second (1977) Repon, Consultative Arrangements and the Co-ordination of Social Policy Development (1978) 12. I am grateful to Mr PH Bailey, the Chairman of the Task Force, for this reference.

18 Ibid 24-28.

19 For a politically panial view of this development, see Lewis, N and Wiles, P, “The Post–Corporatist State?” (1984) 11 J Law & Soc 65, 68CrossRefGoogle Scholar–70.

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26 Constitution Act 1902 (NSW), s 5B.

27 West Lakes Ltd v The State of South Australia (1980) 25 SASR 389, 397 per King CJ, discussing A-G (NSW)v Trethowan (1931) 44 CLR 394, affinned [1932] AC 526 and Commonwealth Aluminium Corporation Ltd v Attorney-General [1976] Qd R 231.

28 For discussion, see G Walker, supra n 21. For a critical view of the practical operation of direct legislation systems, see Magleby, DB, Direct Legislation: Voting on Ballot Propositions in the United States (1984)CrossRefGoogle Scholar.

29 Re Initiative and Referendum Act (1916) 27 Man R 1, upheld on other grounds [1919] AC 935, with dicta suggesting support for this ground at 945; Reference re Legislative Authority of Parliament to Alter or Replace the Senate (1980) 102 DLR (3d) 1. The Privy Council upheld Alberta's Direct Legislation Act 1913, and the Liquor Act 1916 passed under it, in R v Nat Bell Liquors [1922] 2 AC 128, on the ground that the fonnal act of legislation was left to be perfonned by the legislature, even after the referendum. For discussion and criticism, see Hogg, PW, Constitutional Law of Canada (2nd ed 1985) 290-295Google Scholar.

30 There is freedom of information legislation in the Commonwealth (Freedom of Infonnation Act 1982), Victoria (Freedom of Infonnation Act 1982), New South Wales (Freedom of Information Act 1989), and the Australian Capital Territory (Freedom of Information Act 1989). The government of South Australia is committed to its introduction, and in all probability it will be recommended by the Electoral and Administrative Review Commission of Queensland. Obligations to provide reasons statements are found in various pieces of legislation; for the Commonwealth, see s 13 of the Administrative Decisions (Judicial Review) Act 1977, and s 28 of the Administrative Appeals Act 1975.

31 Held, D, Models of Democracy (1987)Google Scholar Ch 9.

32 Ibid 272.

33 Ibid 211.

34 Ibid 284-286.

35 It has been explored by I Duncanson, “Law, Democracy and the Individual” (1988) 8 Legal Studies 303. However, Duncanson (at 305) suggests that these liberties are a restraint on democracy, whereas Held, supra n 31, (and I) see them as intrinsic to any worthwhile theory of democracy.

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40 J Raz, supra n 37; Lustgarten, L, “Socialism and the Rule of Law” (1988) 15 J Law and Soc 25CrossRefGoogle Scholar. For consideration of the significance of accountability in relation to the rule of law, see J Jowell, supra n 38; J Jowell, “Administrative Law”, in Jowell, J L and McAuslan, JP W B (eds), Lord Denning: The Judge and the Law (1984) 209Google Scholar, developing in the context of government and bureaucracy the idea of responsiveness fostered by citizen participation (the “consumer perspective” explained in relation to law by Cahn, E, “Law in the Consumer Perspective” (1963) 112 UPaLRev 1, 12-17)Google Scholar as a public law value distinct from accountability.

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47 Hogg, PW, “The Charter of Rights and American Theories of Interpretation” (1987) 25 Osgoode Hall LJ 87, 89CrossRefGoogle Scholar.

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50 Marx, K, The RevolUlions of 1848 (1973) 200-204Google Scholar; Fine, B, Democracy and the Rule of Law (1984) 122-133Google Scholar.

51 Disapproval of some or all legislation of this sort comes from four sources: philosophical anarchists, who deprecate all state institutions; adherents to historical theories of law of the sort advanced by Savigny, positing a volksgeist which must be respected and is usually infringed by legislative change; economic liberals such as Hayek, supra n 43, who deny that the “spontaneous order” of the market can be improved by legislation except such as is needed to maintain the market; and advocates of popular democratic legislation such as G Walker, supra n 21. The last three groups all support the rule of law (in one form or another).

52 The most penetrating analyses of the operation of law in society are generally by socialist and Weberian theorists. See eg the discussion by S Picciotto, “The Theory of the State, Oass Struggle and the Rule of Law” in Fine, Kinsey, Picciotto and Young (eds), Capitalism and the Rule of Law: from Deviancy Theory to Marxism (1979) 164.

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54 Quoting from P Selznick (with P Nonet and HM Vollmer), Law,Society and Industrial Justice (1969) 29.

55 Ong Ah Chuan v Public Prosecutor [1981] AC 648; Haw Tua Tau v Public Prosecutor [1982] AC 136.

56 Ong Ah Chuan v Public Prosecutor (1981] AC 648, 670.

57 State of West Bengal v Anwar Ali Sarkar AIR 1952 (SC) 75;Rangaswami v The Industrial Tribunal AIR 1953 (Mad) 447;dicta in Mane/ca Gandhi v Union of India. [1978] 2 SCR 621, applied in Hayawadanrao Hockot v State of Maharashta AIR 1978(65) SC 1548; Hussainara Khatoon v Home Secretary, State of Bihar, Patna [1979] 3 SCR 532. See P Sarojini Reddy, Judicial Review of Fundamental Rights (1976), Ch 6. The courts in Malaysia have taken a different view:Kulasingam v Commissioner of i.Ands, Federal Territory [1982] 1 MU 204; but their position has been convincingly criticised: A J Harding, “Property rights under the Malaysian Constitution”, in FA Trindade and HP Lee (eds),The Constitution of Malaysia: Further Perspectives and De11elopments (1986) 59, 60-63.

58 (1904) 2 CLR 139.

59 Ibid 157,per Griffith CJ.

60 [1979] 1 Ch 344

61 (1765) 19 St Tr 1030.

62 [1979) I Ch 344.

63 This is unsatisfactory: it resembles denying a right to exclusive possession of property on the ground that one could be dispossessed, instead of developing rights to protect legitimate expectations.

64 [1979] 1 Ch 344, 357, 366-367.

65 (1904) 2 CLR 139.

66 Edw III, c 3; 16 Car I, c 10. See Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, 47-53 per Gibbs CJ.

67 Cock v Allorney General (NZ) (1909) 28 NZLR 405; accepted but distinguished in Fitzgerald v Commission of Inquiry into Marginal Lands Board [1980] 2 NZLR 368; Re Royal Commission on Thomas Case [1982) l NZLR 252, 263-264; Thompson v Commission of Inquiry into Administration of District Court al Wellington [1983) NZLR 98, 104 per Barlcer J. The Privy Council has left it to the New Zealand courts to worlc out their own approach: Mahon v Air New Zealand Ltd [1984) AC 808, 839-840, affirming Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981) 1 NZLR 618, 625, (majority judgment).

68 Re Gartshore (1919) 44 DLR 623, 630-631 per Hunter CJ.

69 (1904) 2 CLR 139; see McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 93-94 per Dixon J; Lockwood v Commonwealth (1954) 90 CLR 177, 186 per Fullagar J.

70 Eg,on the incidental powers under Australia's Commonwealth Constitution, ss 51(39) and 61, Barton v Commonwealth (1974) 131 CLR 477; Victoria v Commonwealth and Hayden (1975) 134 CLR 338; Davis v Commonwealth (1988) 82 ALR 633.

71 [1979] 1 Ch 344.

72 (1965) 19 St Tr 1030.

73 For Britain, see the Parliamentary Commissioner Act 1967, ss 5(1), (2) and 12(3); Local Government Act 1974, ss 26(1), (6); R v Commissioner for Local Administration; Ex parte Croydon LBC [1989] 1 All ER 1033. For the Australian Commonwealth, see Ombudsman Act 1976 (Cth}, ss 5, 6(3), 15.

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78 See the Cabinet Office pamphlet The Judge over your Shoulder, noted by AW Bradley, [1987) PL 48S.

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80 The Administrative Decisions (Judicial Review) Amendment Bill 1987, aiming to limit the scope of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), was disallowed in the Senate. The Administrative Review Council has gone onto the attack, arguing for an extension of the scope of review: Report No 32: Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act (1989).

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93 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.

94 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41-42; R v Secretary of State for Trade and Industry; Ex parte Lonrho plc (1989) 1 WLR 525.

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96 MacCormick v Lord Advocate 1953 SC 396; Stewart v Henry 1989 SLT (Sh Ct) 34; Fraser v McCorquodale 1989 SLT (Sh Ct) 39. Cf Lord Keith in Gibson v Lord Advocate 1975 SLT 134, 137-8, criticised by the late Prof TB Smith in The Stair Memorial Encyclopaedia, Vol 5, tit Constitutional Law, para 350.

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100 Attorney General v Guardian Newspapers Ltd (No 2) [1988] 3 WLR 776; cf In re Mand H (Minors) (Local Authority: Parental Rights) [1988) 3 WLR 485.

101 [1988] 3 WLR 776 per Scott J, CA and HL

102 sankey v Whillam (1978) 142 CLR 1; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39;Lord Advocate v The Scotsman Publications Ltd 1988 SLT 490 (Court of Session, Scotland), affirmed on appeal [1989] 3 WLR 358, (HL).

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106 I argue this point in relation to the House of Lords in “Public Law Values in the House of Lords”, (1990) 106 LQR 246. See further Attorney General v Times Newspapers Ltd [1974] AC 273; Sunday Times v United Kingdom (1979) 2 EHRR 245; Moss v Mclachlan (1985) IRLR 76; R v Secretary of State for the Hamil Departmllnt; Ex parte Northumbria Police Authority [1988] 1 All ER 556.

107 Hunter v Southam Inc (1984) 11 DLR (4th) 641. See also R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321; R v Oakes (1986) 26 DLR (4th) 200; Peck, S R, “An Analytical Framework for the Application of the Canadian Charter of Rights and Freedoms” (1987) 25 Osgoode Hall LJ 1CrossRefGoogle Scholar.

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109 New Zealand Drivers' Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390 per CookeJ.

110 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

111 Taylor v New Zealand Poultry Board [1984) 1 NZLR 394, 398 per Cooke J.

112 See the discussions in Building Construction Employees and Builders' Labourers Federation v Minister for Industrial Relations [1986] 7 NSWLR 372, 385-387 per Street CJ, 402-406 per Kirby P, 409 per Mahoney JA. The High Court of Australia has left the question open for future argument, at least so far as it turns on rights which are fundamental to democracy rather than merely being a checklist of particular judges' favoured interests: Union Steamship Co of Australia Pty Ltd v King (1988) 82 ALR 43, 48.

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121 Eg R v Panel on Takeovers and Mergers; Ex parte Guinness plc [1989] 2 WLR 863; R v Secretary of State for Trath and Industry; Ex parte lonrho plc [1989] 1 WLR 525.